Archive for June, 2008

I spent the last week on Harvard business on the west coast, and managed to work in talks about Blown to Bits at Google, Microsoft, and Amazon. Hal joined me at Google, and at Amazon I proudly showed off page 180, where we asked the question, “Does Amazon even have a physical location?” (This is part of the explanation of why public key cryptography is so important, as it enables strangers to agree on an encryption key without meeting.)

I then headed for the hills of northwest Montana to hide from it all. I stopped at a market to pick up the local paper, which usually leads with a story about bears or shootings or the water level on the lake. Wouldn’t you know it, this week it’s a bits story.

“Virtual High School closer to reality at BHS,” goes the headline. Bigfork High tends to lose top students to the bigger district in Kalispell, where they can take more advanced courses. This year they are going to pilot¬†Virtual High School, a Maynard, Massachusetts-based initiative. (If they can get past the various teacher and curriculum certification hurdles.)

Educational technology has had so many failures over the years, starting with educational TV in my youth, that skeptics about Internet-based education should be forgiven. But good for Bigfork for giving this a shot. It may well prove to be the equalizer that rural school districts need, a germ of Internet-enabled enlightenment — and with gasoline more than $4/gallon, a smart way to deliver information to the people rather than transporting people to the information.

At a hotel in San Francisco where I stayed a few days ago, taking a can of Coke out of the fridge automatically puts that item on your room bill. Same if you take a candy bar from the case nearby or a nip from the liquor cabinet. Each item is on top of a sensor which fires when the item is removed. There are no “did you have anything from the minibar this morning” questions at checkout. Instead you are presented with a bill showing, along with the charges for the room and taxes, all the particulars of your in-room eating and drinking self-indulgences.

I asked if I would have been charged if I removed a can of Coke and then decided to put it back (I actually drink only Diet Coke, and can imagine making that mistake with an under the counter fridge). The answer was no — as long as I put it back quickly.

How should I think about the fact that the bits stating that Harry Lewis consumed a can of Diet Coke at exactly 9:22:02 PM on June 24, 2008, will likely be preserved forever, mixed into some data aggregate for analysis purposes, but also retrievable as an individual factoid if there were some reason to do so?

The granularity of the digital explosion is astonishing. Ordinary life is being blown not just to bits, but into microscopic digital dust.

Now that’s a dog-bites-man headline, but the votes in question are the votes that validated the unconstitutional government wiretapping under FISA discussed in earlier posts (here, here, and here). Now it turns out, thanks to excellent research by Maplight.org, that House members who favored immunity for the telcos received on average more than twice as much in telco contributions than those who voted no. Democrats who switched their votes in order to relieve the telcos of responsibility for the wiretaps received 68% more than those who voted against immunity twice.

One of the themes of Chapter 8 of Blown to Bits is the importance of the political contributions by entrenched interests, major communications corporations in particular, on freedom of information as the technology makes an open society more feasible. These numbers dramatically show the extent to which Congresspeople will act against the public interest broadly and the civil rights of individuals in order to raise the money needed for their re-election campaigns. It must be pretty demoralizing for the honorable ones among our elected representatives.

Is it acceptable for Customs officers to search through the contents of your laptop, look at files, read your email, go through your pictures, pick over your web search history, check to see if you have any illegal MP3 downloads, maybe some movies?

There are actually three parts to the question.

Is it legal to search all the electronic stuff you are carrying?

Is it legal to do it without any “reasonable suspicion” that you’re doing something illegal?

And, most importantly, how do you feel about it?¬† if it is legal, should it be?

There was 100% agreement, at least among the ten people at lunch today, that it was completely wrong to do so, and they presumed that it was either illegal, or, at least illegal without probable cause and maybe even a search warrant.

Not so.

On April 21, 2008, Judge Diarmuid F. O‚ÄôScannlain issued an opinion in the case of United States of America v. Michael Timothy Arnold.¬† Mr. Arnold, a forty-three year old man,¬† was returning from a trip to the Phillipines.¬† He landed at LAX and went through customs.¬† We’ve all done that – gone through customs that is.¬† They have an important function to peform; making sure that people don’t bring bad stuff into the country, things they haven’t paid duty on, animals, fruits that might harbor insects, contraband, and mostly drugs.¬† Mr. Arnold wasn’t a suspect, nor was he behaving in a suspicious way.¬† He was selected randomly for more careful screening.¬† In this case, the customs agent asked him to turn on his laptop, and proceeded to look through his photo album.¬† The agent found pictures of nude women and called in more experts.¬† They went through all his digital files and found images that they considered to be child pornography.

Mr. Arnold argued that the customs officers should not have been allowed to search his laptop without “reasonable suspicion,” and filed a motion to suppress.¬† The District Court agreed, but that finding was overturned by the Appeals court, as detailed in Judge O‚ÄôScannlain’s opinion.

But my point is not to argue the subtleties of the law, it is to recognize that, as we say so often in Blown to Bits, that quanititative changes have qualitative impacts.¬† Looking through your briefcase for undeclared purchases, searching your bag for the cheese you are trying to bring into the country, or for the kilo of cocaine, feels quite different from going through everything on your hard drive.¬† For many of us, our laptops contain a record of much of our lives: years of pictures, enormous email archives (mine’s about 2 GB.), every appointment we’ve had.¬† There is something inherently creepy about the notion of being laid bare in front of a customs agent simply because you are crossing the border.

We have strong legal protections for what we have in our homes.¬† The Fourth Amendment states that ‚Äú[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .‚Äù Homes used to be where we kept the record of our lives, the pictures, the correspondence, our entire music collection.¬† It was inconceivable that you would carry it all about with you. But no more.¬† You can fit quite a bit if personal history on a 120GB disk drive. The digital explosion blew a big hole in the wall of our house.¬† Many of us carry our history with us.

Once again our legal structures feel intuitively to be out of whack with the nature of the digital universe.¬† How profoundly will our privacy be violated if a customs agent can pour through our most intimate thoughts, read our digital diaries, explore our interests and desires, our corporate secrets and health records.

Like all the stories we tell about BITS, this one is not over, but the implication is both clear, and consistent with our other observations: those who make the laws, and those who interpret them need to bring a deeper understanding of the technologies that are so much a part of the fabric of our lives

And not just Ebay — Amazon, the credit card companies, and every small business that accepts electronic payments. In practice, this means that the vaunted housing bail-out bill requires us all to disclose everything about our personal lives to government inspection and analysis.

1) Comcast and Time Warner are experimenting with metering Internet usage, on the principle that the Internet is like the water supply system. Problem with this idea is that there is no bits shortage as there is a water shortage. They should be building more pipes rather than maintaining the pipe scarcity and jacking up their prices for the water.

2) The FCC wants to auction off a piece of the spectrum to someone willing to use part of it to build a nation-wide, free, wireless Internet. The catch? This parallel universe will be censored. According to the Wall Street Journal, “Details about how to define what content would be unacceptable for viewing over the free network is still under discussion.”

Neither the FCC nor any other government agency has any business in Internet censorship, as the courts have repeatedly held. (In fact, the FCC has no business in broadcast censorship any more either, but see Chapter 8 of Blown to Bits for that story.) There are so many problems with this idea, it’s hard to know where to begin, but Scott Bradner’s column would be a good start for those wanting to know more and to get some of the background. Fundamentally, the flaw with this proposal rests on another metaphorical failure. See also David Weinberger on this.

That’s the title of a story from the Sunday NYT Business page, on a company called Sense Networks, which aggregates billions of bits of location data to predict future movements. Two applications mentioned are predicting where taxis will be needed and what nightclubs people are likely to head toward.
Where does the location data come from? For the taxi application, it’s easy; just put GPSs on all your taxis and let the data roll in, all nicely timestamped. For the nightclub application, cell phone data. Now cell phone locations are covered by strict privacy laws in this country, so that data is obtained by making a deal with the phones’ owners: Let us track you and we’ll keep you ahead of the curve on nightlife happenings. To monetize the product, Sense doesn’t need to track individuals only aggregate trends, but tracking individuals has extra value. Once enough data has been accumulated about what clubs you go to on rainy Tuesdays, maybe you can be prompted with suggestions of similar clubs, selected just for you.

The company absorbs other publicly available information into its predictive algorithms, for example weather data. Another example of the tons of bits that are out there, some for the taking and some for the asking, from which useful inventions can be created. And how easy it is to get past privacy worries by providing the general public very modest incentives.

The Wall Street Journal reported Friday that “Sen. Obama is a supporter of legislation that would guarantee ‘network neutrality.’” Sen. McCain reportedly prefers a “market-based” approach, meaning that he opposes neutrality rules. We all love markets, but ask yourself how much a market there is in broadband services where you live. About half the country has zero or one choices, and virtually all the rest at most two, DSL and Cable. Hard for the free market to operate in a monopoly-duopoly world. In the absence of real broadband competition and consumer choice, the service providers have to be regulated to prevent them from using their carrier power to dictate content.

As we were completing Blown to Bits, the big news on the copyright war front was the Jammie Thomas trial. (See ‚ÄúSending a Message‚Äù in Chapter 6.) This was the first of the thousands of peer-to-peer lawsuits filed by the RIAA to go all the way to a jury trial. Thomas lost and lost big: The jury not only found the Minnesota woman guilty of sharing 24 songs using Kazaa, but they imposed a fine of $220,000: $9250 per song. This was a huge victory for the record companies, because the demonstrated reality of such high stakes for losing in court is a huge incentive for other targets of RIAA lawsuits to settle.

Now the verdict is being called into question. In May, trial court judge Michael Davis issued a ruling saying that he may have made a legal error in instructing the jury.

Here’s the issue: Thomas, and the other P2P lawsuit targets are accused of infringing copyright by illegally distributing music tracks. What they actually did (allegedly), was to place the music tracks on their computers in a way that made them available over the network. Does ‚Äúmaking available‚Äù count as ‚Äúdistribution‚Äù under the copyright law, or does ‚Äúdistribution‚Äù require the files actually be disseminated? This issue has come up before, and different courts have ruled differently on the issue. Judge Davis instructed the Thomas jury that ‚Äúmaking available‚Äù does in fact count as distribution. Now it appears that there is an appeals Court ruling in the 8th Circuit going other way: ‚Äúdistribution‚Äù requires actual dissemination of material, not just ‚Äúmaking available‚Äù. Since Minnesota is in the 8th Circuit, that should be a governing precedent in the Thomas case. Davis will hear arguments on the issue in hardings scheduled for July 1.

These gyrations underscore how uncomfortable the legal system becomes when old notions of copyright confront new digital realities and just how much the copyright balance has been toppled by the world of bits.

And things can get even murkier. As Villanova Law Professor Michael Carroll points out (http://carrollogos.blogspot.com/), the RIAA, in arguing for the ‚Äúmaking available‚Äù interpretation of distribution, may want to be careful of what it’s wishing for. US copyright law includes a provision called the first-sale doctrine, which says that once you’ve acquired a copy of something, it’s legal to redistribute it. That’s why used book stores are legal, for example. So if making music tracks available counts as distribution, it ought to be OK under the first-sale doctrine. In that case, the record companies would probably argue that placing music on a P2P network counts as contributory infringement, and the legal merry-go-round rides would continue.

We’ve created an list of edits and errata for the book. For future reference, it is the last link on the “Excerpts” page shown in the menu bar. These changes will all be incorporated into the second printing. Please email us any other problems that need fixing, large or small. Our aim is to get this book perfect and to keep our readers fully informed when it isn’t.